Appeals and the travesty of justice

After 13 years, actor Salman Khan has finally been convicted in the Mumbai hit-and-run case. In 2002, he ran his car over a group of homeless men sleeping on the platform, killing one and injuring several others. Khan, who has been sentenced to five years in prison by a Sessions court in Mumbai, is likely to appeal in the Bombay High Court.

And in this way, some more years will pass.

Consider another case, far from the glare of cameras and press attention, one where conviction was delayed not by 13 years, but a mind-boggling 41 years. This was the obscure case of Parsuram Satpathy, a student leader, who was murdered by a former member of the legislative assembly and eight others in 1974 in Balangir, Odisha. On Monday, the Orissa high court awarded life imprisonment to three of the nine accused. The other six died over the course of 40 years. Quite naturally for Satpathy’s family, the punishment that has been handed out is a far cry from any understanding of the word justice.

These very different cases are among a huge number of civil and criminal proceedings that display one feature: delays caused by strict adherence to procedural justice. Once meant to safeguard the poor against the mighty, procedural aspects of law now pose a danger to the delivery of justice itself. The number of cases pending in the judicial pipeline is a case in point.

A data-based Mint report on the overburdened judicial system revealed that, “The average percentage of cases pending trial in state high courts and lower courts has increased to 84.81% in 2013 compared with 82.8% a decade earlier…The completion rate for cases has fallen to 13.19% in 2013 from 14.61% in 2003…the outstanding number of criminal cases before the judiciary was 9.71 million in 2013.” (The slow moving wheels of Indian judiciary, 5 August 2014) Compare this with the number of pending criminal cases in US district courts in 2013: 75,578. In the US, the number of pending cases has actually fallen 1% from 2012.

Speed is the essence of justice. Very often, delays in the delivery of justice take the sting out of the crime. This provides sufficient room for the accused to device mitigation strategies that soon translate into grounds for leniency. This is evident in Khan’s case. The arguments that started surfacing before and after the verdict was announced are partly explained by this sort of strategizing. How to reconcile a verdict convicting him of killing a man, with the fact that through his charity Being Human he has helped in the betterment of several lives? To put it bluntly, for the purposes of justice it doesn’t matter.

Khan committed his crime in 2002. He started his charity in 2007. He could spend his life doing charity but that doesn’t diminish the gravity of the crime itself. The trouble with delaying justice is just this: it lends credence to such arguments for clemency.

There are a number of reasons for the tardiness in the Indian justice system. One obvious reason is the system of appeals. Almost all cases can be appealed from the trial stage all the way to the apex court. There is no limitation on this. This has important behavioural consequences among litigants. If there is no clear line at which the case can end, it encourages the belief that at the next stage, from the first to the final appeal, a change of fortune may be possible. Instrumentally, this is the reason for the judicial pile up in India.

There is another, deeper reason as well.

Classically, the domain of justice was greatly circumscribed: dealing with no more than undoing individual wrong. But since the 19th century, it has been expanded to social, political and economic realms. This enlargement has come at the cost of individual justice. In India, since 1947, the sphere of justice has been constantly enlarged to the extent that the judicial system is largely concerned with “bigger” issues today. Some lip service is paid to the number of pending cases in lower and appeals courts but very little is done about it. Issues of social justice—there is even a special Supreme Court bench to hear these matters—often get far more attention than ordinary civil and criminal cases that affect citizens directly. In India, the scale is tipped in favour of social and political justice and individual justice suffers.

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